“Docket No. 80-0471 SECRETARY OF LABOR,Complainant,v.BEAUTY CRAFT TILE OF THE SOUTHWEST, INC.,Respondent.OSHRC Docket No. 80-0471DECISIONBefore:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner.BUCKLEY, Chairman:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The basic issue is whether former Commission Judge Quentin P. McColgin erredin suppressing evidence gathered pursuant to a warrant on the ground that probable causedid not exist for issuance of a broad-scope warrant.\u00a0 Also at issue is whether thewarrant was invalid because it was issued ex parte.\u00a0 We conclude thatevidence gathered pursuant to the warrant should not be suppressed, and we remand forfurther proceedings.Beauty Craft has a place of business in Carnegie, Oklahoma.\u00a0 According to anaffidavit by one of the Secretary’s compliance officers, Dean Wingo, his office received acomplaint about the removal of safety devices on most of the machinery at the plant andinadequate ventilation in its paint shop.\u00a0 Wingo and two other compliance officerswent to the plant without a warrant six days later and requested entry for an inspection.\u00a0 They were refused entry.\u00a0 Two and one-half months later, following a furtherinvestigation of the grounds for the complaint, Wingo applied to a United Statesmagistrate for a warrant.\u00a0 Based on Wingo’s affidavit in support of the application,the magistrate issued a warrant.\u00a0 The warrant referred to the warrant application andaffidavit and authorized, among other things, an inspection of \”all pertinentconditions, structures, machines, apparatus, devices, equipment, and materials\” atthe plant.\u00a0 Compliance officer Wingo was admitted to the plant based on the warrant.\u00a0 Following this inspection, citations were issued alleging numerous serious andnonserious OSHA violations, including some machine guarding and spray painting violations.Beauty Craft contested the citations and moved before the administrative lawjudge to suppress all evidence resulting from the inspection on the ground that thewarrant was invalid.\u00a0 Beauty Craft contended specifically (1) that the warrant wasnot supported by probable cause, (2) that in any event it was overbroad because it wasbased on complaints about specific violations, and (3) that it was sought ex partein contravention of the Secretary’s regulations.\u00a0 The judge granted the motion ongrounds of overbreadth and later vacated the citations because the Secretary did notproceed on the basis of other evidence after the judge had given him the opportunity.On review, the Secretary contends that probable cause existed for aninspection of the entire facility or at least much of it; that evidence of violationswithin plain view of the areas which the compliance officer had probable cause to inspectshould not have been suppressed; and that no evidence should have been suppressed in anyevent because his agents acted in good faith.\u00a0 For the reasons set forth in ourseparate opinions, Commissioner Cleary and I reverse the judge’s decision and remand thecase.Once an employer permits an inspection pursuant to a warrant, the employermust exhaust the remedies administratively available in Commission proceedings.\u00a0 RobertK. Bell Enterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983); Donovan v.Sarasota Concrete Co., 693 F.2d 1061 (11th Cir. 1982); Baldwin Metals Co. v.Donovan, 642 F.2d 768 (5th Cir. 1981); Establishment Inspection of J.R.Simplot Co., 640 F.2d 1134 (9th Cir. 1981); In the Matter of the Inspection ofCentral Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); Babcock & Wilcox Co.v. Marshall, 610 F.2d 1128 (3rd Cir. 1979).\u00a0 See also In reWorksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979)(tothe extent that there is adequate remedy in the administrative proceedings, there must beexhaustion).\u00a0 But see Donovan v. Federal Casting Division,Chromalloy American Corp v. Donovan, 684 F.2d 504 (7th Cir. 1982) (administrativeremedies do not have to be exhausted prior to judicial review).\u00a0 The Commission andCommission judges do not have authority to review the decision of the magistrate to issuethe warrant.\u00a0 Babcock & Wilcox Co. v. Marshall, supra.\u00a0 See also Baldwin Metals Co. v. Donovan, supra. \u00a0The function of the Commission and the Commission judges is to hear employers’ challengesto the Secretary’s evidence in support of citations and, consistent with this authority,the Commission can consider an employer’s claim that evidence should be suppressed becauseof an invalid inspection.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c); Babcock& Wilcox Co. v. Marshall, supra.\u00a0 See also EstablishmentInspection of the Metal Bank of America, Inc., 700 F.2d 910 (3d Cir. 1983); BaldwinMetals Co. v. Donovan, supra.The Supreme Court has emphasized that suppression of evidence is a judicially createdmeasure to protect Fourth Amendment rights by deterring future misconduct by lawenforcement officers.\u00a0 United States v. Calandra, 414 U.S. 333, 348 (1974), citedin United States v. Leon, 104 S.Ct. 3405, 3412 (1984).\u00a0 Critical to theresolution of the suppression issue in this case is whether suppression can reasonably beexpected to deter future misconduct in OSHA-related searches.\u00a0 In United States v.Leon, supra, the Supreme Court stated that suppression can be expected to havelittle, if any, deterrent effect on judges or magistrates, issuing warrants. \u00a0Moreover, the Commission has no authority to supervise the actions of judges ormagistrates.\u00a0 The Commission should not suppress evidence, therefore, where the onlydeterrent effect would bear on the judge or magistrate issuing the warrant.In this case, Beauty Craft’s arguments for suppression of the evidence relateto the magistrate’s decision to issue the warrant, not to the conduct of the complianceofficers in making the inspection pursuant to the warrant.\u00a0 Beauty Craft’s argumentsabout probable cause and overbreadth are clearly in the former category, not the latter.\u00a0 As to Beauty Craft’s objection to the ex parte nature of the warrantproceeding, the Commission has held that the Secretary was authorized to seek warrants exparte at the time the warrant issued.\u00a0 Roberts Consolidated Industries, Inc.,82 OSAHRC 38\/A2, 10 BNA OSHC 1761, 1982 CCH OSHD ? 26,135 (No. 80-2423, 1982).\u00a0 TheU.S. Court of Appeals for the Tenth Circuit, the circuit in which Beauty Craft’s plant islocated, has reached the same conclusion.\u00a0 Marshall v. W & W Steel Co.,604 F.2d 1322, 1325-26 (10th Cir. 1979).\u00a0 Accordingly, the ex parteproceeding to obtain the warrant in this case was not an instance of OSHA misconduct.\u00a0 In short, suppression of the evidence in this case would not serve any purpose,considering that OSHA duly obtained a warrant from a magistrate after making an extensiveinvestigation and after having submitted to the magistrate an affidavit relating to causefor and the scope of the inspection.Thus, I join Commissioner Cleary in reversing the judge’s decision suppressing theevidence obtained pursuant to the warrant and in remanding the case for furtherproceedings consistent with our decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated:\u00a0 OCT 31 1984CLEARY, Commissioner, concurring:In my view the magistrate was presented with sufficient probable cause forissuance of a broad-scope warrant.\u00a0 Hence, no evidence gathered during the inspectionshould be suppressed.The affidavit on which the magistrate relied described several complaints:\u00a0 that safety devices on \”most\” of Beauty Craft’s machinery had beenremoved, that \”many\” of Beauty Craft’s machines were not guarded, that oneemployee died after he was struck by a board that kicked out of a woodworking machine fromwhich the anti-kickback device had been removed, that the son of one of the complainantshad suffered a finger amputation during his employment, and that the paint shop wasinadequately ventilated.\u00a0 These complaints describe pervasive conditions and hazards;only on-site inspection could establish the nature and locations of machines withoutguards or safety devices or the scope of the ventilation hazard alleged to emanate fromthe paint shop.\u00a0 Given the scope of these allegations, together with the absence ofany reason to believe that Beauty Craft was a multifaceted establishment or so large thatthe complained-of conditions and hazards might be limited to a particular area, themagistrate could reasonably infer that a wall-to-wall inspection was necessary orreasonable.[[1]]I concur with Chairman Buckley and reject Beauty Craft’s objection to the ex partenature of the warrant proceeding for the reasons stated in the lead opinion.\u00a0 RobertsConsolidated Industries, Inc., 82 OSAHRC 38\/A2, 10 BNA OSHC 1761, 1982 CCH OSHD ?26,135 (No. 80-2423, 1982); see also Marshall v. W & W Steel Co.,604 F.2d 1325-26 (10th Cir. 1979).\u00a0 Thus, I join in reversing the judge’s decisionand remanding the case for further proceedings consistent with this decision.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-8398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] When complaints of OSHA violations describe conditions and hazards thatare pervasive or whose location cannot be precisely determined prior to entry of thepremises, broad-scope warrants are justified.\u00a0 See Sarasota Concrete Co.,81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1617, 1981, CCH OSHD ? 25,360, p. 31,536 (No. 78-5264,1981) (\”In complaint situations . . . an inspection beyond the scope of the allegedviolation is not permissible where the Secretary can determine the precise location ofthe alleged violation.\”) (Emphasis added), aff’d, 693 F.2d 1061,1069 (11th Cir. 1982 ) (\”[W]e do not maintain that a specific complaint may neverform the basis of a full scope inspection . . . . [A] specific complaint may allege aviolation which permeates the workplace so that a full scope inspection is reasonablyrelated to the complaint.\”).\u00a0 See also In re Inspection ofCarondelet Coke Corp., 741 F.2d 172 (8th Cir. 1984) and cases discussed therein.”